Bressler Risk Blog

David Kluft asks: “If I know the judge should recuse herself, but I don’t want her to, can I keep my mouth shut?” —

• “Judges may be disqualified from a case for a number of reasons, including a personal relationship with a party, an economic interest implicated by the case, or extrajudicial knowledge of the underlying facts.”
• “ABA Opinion 522 addresses situations in which a lawyer knows about grounds for a judge’s disqualification, but for some reason the judge hasn’t raised it, perhaps because the conflict is not obvious or the judge’s memory has failed. Does the lawyer have an affirmative obligation to bring it up even though the judge doesn’t?”
• “The answer is yes, per Rule 8.4(d) (conduct prejudicial to the administration of justice). The ABA interprets Rule 8.4(d) as requiring officers of the court to speak up and disclose ‘procedural or jurisdictional information,’ that could impact the fairness of the proceedings, and that includes information that would get the judge recused. Note, however, that this duty may be limited by the duty of confidentiality under Rule 1.6.”
• Opinion: here.

“Alito bows out of blockbuster Supreme Court climate case” —

• “Supreme Court Justice Samuel Alito is stepping back from a major climate argument just a week before the court is scheduled to take up the case. Alito had faced calls to recuse himself from Suncor v. Boulder over his financial interests in energy companies. A Monday letter from Scott Harris, clerk of the court, informed the parties that Alito ‘has determined that he will not continue to participate in this case.’ The notice did not further explain his decision to sit out arguments Oct. 5, the first day of the court’s new term.”
• “In the case, Colorado localities are seeking damages under state tort laws related to the effects of climate change. The suit named Suncor and ExxonMobil. While Alito does not hold stock in those companies, he is invested in several other fossil fuel companies, including oil giants ConocoPhillips and Phillips 66. They are named in many lawsuits similar to Colorado’s that have been filed around the country. The future of those cases will be affected by the Supreme Court’s ruling in Suncor.”
• “A spokesperson for the court as recently as May had said that Alito wouldn’t recuse because he didn’t have a ‘financial interest in any party’
• involved in Suncor and that he was advised by the court’s legal counsel that ‘his recusal is not required.'”
  “Alito did recuse himself when the court turned away an appeal from the companies in the Colorado case in 2023. But that recusal came as the court on the same day rejected appeals in similar cases involving other companies, including ConocoPhillips and Phillips 66.”
• “The court spokesperson said earlier this year that Alito had ‘inadvertently recused’ himself in the earlier Colorado case ‘because it was considered at the same time as other cases where the justice did have a financial interest in the parties.'”
• “Alito had resisted calls to step aside from the upcoming climate argument, even as watchdog groups note that the entire oil industry is likely to be affected by the decision. California-based Consumer Watchdog has noted that both ConocoPhillips and Phillips 66 have warned shareholders multiple times over the past decade about the potential financial consequences of the litigation.”
• “‘The public should not have to wonder whether a justice’s personal investments could benefit from a ruling that shields the fossil-fuel industry from liability,’ said Organizing Director Alexandra Nagy.”

“NJ Justices Take On Atty DQ In Injury Cases After J&J Ruling” —

• “New Jersey’s Supreme Court has agreed to review the disqualification of an attorney from representing plaintiffs in several cases over injuries at Sky Zone trampoline parks after a trial court ruled the attorney’s retention of a former company safety official as an expert could prejudice proceedings.”
• “In June, the Superior Court’s Appellate Division affirmed a Superior Court disqualification ruling from April. Plaintiffs in the injury cases represented by Chazen then filed a motion for leave to appeal to the state’s high court.”
• “In a July brief, the plaintiffs argued that the Superior Court improperly relied on a February appellate decision that disqualified the Beasley Allen Law Firm from representing plaintiffs in multicounty litigation over Johnson & Johnson’s talc-based baby powder.”
• “In the J&J decision, an appellate panel said that the association of someone who had represented J&J as outside counsel in the talc litigation for two years with Beasley Allen and one of its attorneys had violated the state’s rules of professional conduct around nonlawyers association with lawyers and a lawyer’s duty to former clients.”
• “Chazen, as counsel for the plaintiffs in the Sky Zone injury cases and as an intervenor in the appeal, asserted in the July brief that the trial court ‘erroneously disqualified’ him based on the J&J decision.”
• “There are contradictions between the J&J disqualification decision and a prior Appellate Division ruling from 2001 regarding professional conduct rules that the state’s high court needs to clear up, Chazen said. The Supreme Court needs to weigh in on whether certain rules have been expanded to include conduct by individuals who were never attorneys, as well as if the J&J ruling should be applied retroactively to conduct before the decision was issued, he said.”
• “‘Resolution of these issues by this Court is necessary so that attorneys and litigants will have clear guidance as to what conduct is permitted under the Rules of Professional Conduct,’ the brief said.”
• “But in an opposition brief filed in July, the Sky Zone-affiliated defendants, including Rockin’ Jump Holdings LLC, argued plaintiffs in the injury cases misapprehended the Superior Court’s disqualification order and misunderstood ‘the underlying legal principles.'”
• “They say there are ‘no inconsistent rulings for which guidance is required,’ as the J&J ruling and the prior decision mentioned by the plaintiffs deal with different conduct and rules of professional conduct.”
• “The Sky Zone defendants assert their disqualification motion relates to ethical concerns that were dealt with in the J&J decision, saying that decision ‘governs disqualification arising from counsel’s association with a conflicted insider whose knowledge of adversary strategy is integrated into litigation efforts.'”
• “‘Plaintiffs’ attempt to conflate these frameworks is legally incorrect and was properly rejected by the trial court,’ they contend.”
• “At issue in the Superior Court’s April disqualification decision was Chazen’s retention of Rollin Gordon, who had been director of safety and risk management for Sky Zone from 2023 to 2024, according to court documents.”
• “In his April ruling, Superior Court Judge Gary K. Wolinetz raised concerns about Chazen’s dealings with Gordon, even though the former Sky Zone employee was barred as an expert by trial courts adjudicating the injury suits that Chazen’s clients filed.”
• “‘Clearly, as Mr. Chazen acknowledged at oral argument before me, he could have taken Gordon’s deposition and, thereafter, secured his own expert,’ Judge Wolinetz said. ‘In doing so, Mr. Chazen could have avoided the conundrum in which he now finds himself.'”
• “But Chazen ‘made a tactical decision to retain Gordon,’ the judge said, and Gordon ‘was in a position to provide confidential information to him’ that he obtained during the time he was employed at Sky Zone and related entities.”
• “‘What precise confidential and/or privileged information Gordon actually provided to Mr. Chazen and its value is not the determinative factor in this motion,’ the judge said.”
• “The judge added: ‘While Gordon was repeatedly barred by courts in this Litigation from serving as an expert witness against Sky Zone, I find that this entire situation is prejudicial to the administration of justice.'”

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“Law firm Seyfarth says breach exposed client documents” —

• “Law firm Seyfarth Shaw said in new disclosures to officials in at least two US states that it suffered a data security breach that exposed documents containing personal information, ​the latest cybersecurity incident to hit the legal industry.”
• “Seyfarth notified the ‌Texas attorney general this week about the data security incident, saying it involved names and Social Security numbers.”
• “The firm in a statement to Reuters said the breach stemmed from a ‘targeted social engineering attack in which someone impersonating our IT ​help desk deceived an employee into emailing a limited number of client documents to an unauthorized ​outside email account.’ The firm said the incident was isolated to a single ⁠employee, and that the firm’s security controls prevented access to the firm’s network or systems.”
• “Seyfarth last week reported the incident ​to the attorney general’s office in California. In a draft notice to a victim, the firm said it ‘identified unauthorized acquisition of a limited number of documents containing personal information.’ It also said that it obtained the person’s information ‘in the course ​of certain legal services performed by the firm.'”
• “The notice said an investigation of the circumstances ‘confirmed that ​there was no evidence of unauthorized access to Seyfarth’s network and that the event was limited to a small number ‌of ⁠documents sent by email to an unauthorized recipient.'”
• “Cyber incidents involving law firms are on the rise. Law firm ​BakerHostetler said in a ​report in March that ⁠its digital assets and data management groups responded to nearly 60 law firm incidents last year, almost double the number reported the previous year.”
• “Other law firms including, Quinn Emanuel, McDermott, Goodwin Procter and Herbert Smith, have disclosed data breaches in recent weeks. Law firm WilmerHale was sued in ⁠federal court ​in Washington in July following an alleged data-security breach.”

“Biglaw Firm’s Cybersecurity Headache Just Got Even Worse” —

• “Law firms have spent years warning clients about the dangers of cyberattacks. Unfortunately, hackers seem to have decided that the firms themselves make far more interesting targets.”
• “As reported by Reuters, Greenberg Traurig is now facing two proposed class actions following its disclosure that sensitive personal information was exposed in a recent data breach. The lawsuits are the latest legal fallout from an escalating wave of cyberattacks against Biglaw firms.”
• “Earlier this month, Greenberg Traurig said that an unauthorized actor had accessed a ‘limited’ number of documents and posted them on the dark web. The firm maintained that its systems were not compromised and said that only a small number of clients were affected, but a regulatory notice revealed that Social Security information had been exposed.”
• “Greenberg Traurig joins WilmerHale among the major firms that have been sued after recent breaches, while Quinn Emanuel, McDermott, HSF Kramer, and Goodwin have also disclosed cyber incidents.”
• “Biglaw may be great at protecting client confidences in court, but protecting them from hackers is becoming another matter entirely. “

“Tarter Krinsky Data Breach May Have Affected Health Info” —

• “Tarter Krinsky & Drogin LLP said in a letter this month that a data breach last year may have compromised protected health information the firm possessed due to its representation of an unnamed healthcare provider.”
• “The partially redacted Sept. 4 letter published by the California Attorney General’s Office said Tarter Krinsky became aware of suspicious activity on Sept. 10, 2025, and has recently completed its review of the materials affected by the breach. The types of information found in the potentially affected files include medical record numbers, dates of birth and treatment information.”
• “According to the letter, an investigation found that someone accessed Tarter Krinsky’s servers at various points between July 9, 2025, and Sept. 9, 2025. The firm said it isn’t aware of any identity theft, fraud or misuse of personal information stemming from the incident.”
• “‘Late last year, we identified suspicious activity on our network and immediately took steps to secure our systems and investigate the matter with the assistance of external cybersecurity professionals,’ a firm spokesperson told Law360 Pulse in an email Wednesday. ‘We have used the findings of that investigation to identify who was affected, and we’ve notified affected individuals and clients directly.'”
• “‘Unauthorized access to systems or files maintained by a law firm can create significant privacy and security concerns,’ Federman & Sherwood said. ‘Federman & Sherwood is investigating whether Tarter Krinsky & Drogin LLP implemented reasonable cybersecurity safeguards to protect sensitive information and whether additional security measures could have prevented or reduced the impact of the data breach.'”

“RICO Lawsuits Are Taking Aim at Lawyers” —

• “A series of cases are testing whether racketeering claims can serve as a counteroffensive against opposing counsel. The lawsuits assert that alleged misconduct surrounding the business of building litigation can itself become the basis for racketeering cases against attorneys.”
• “Defendants have primarily deployed the tactic against personal injury and mass tort attorneys, with litigation from Uber Technologies Inc. emerging as one of the most prominent examples of the approach. The jury is still out on whether these claims can stick, with courts issuing mixed results as they begin weighing the legal theory.”
• “Uber has also hit several attorneys filing collision cases with suits alleging that they violated the federal Racketeer Influenced and Corrupt Organizations Act, or RICO Act, by collaborating with health care professionals to inflate medical costs and expand damages claims. In recent months, several judges have started testing the viability and limits of that strategy.”
• “Last month, U.S. District Judge Orelia Merchant of the Eastern District of New York dismissed Uber’s case against Wingate, Russotti, Shapiro, Moses & Halperin, finding deficiencies in Uber’s allegations of a RICO enterprise, conspiracy and injury. Merchant also concluded that Uber had not plausibly alleged that the defendants shared the necessary ‘common purpose.'”
• “‘At best,’ Merchant wrote, the allegations showed the doctors ‘received benefits incidental to an ordinary and lawful client-referral relationship and third-party litigation financing of medical treatment …’ rather than sharing a common purpose of fraudulent conduct.”
• “A California judge, however, reached the opposite conclusion over Uber’s allegations against another group of plaintiffs firms. U.S. District Judge Sherilyn Peace Garnett of the Central District of California found that Uber had plausibly alleged a relationship that went beyond an ordinary commercial relationship between attorneys and a spine surgeon. Garnett pointed to allegations suggesting the defendants acted in furtherance of a ‘common purpose’ of generating inflated medical bills to extract higher settlements from plaintiff.'”
• “Meanwhile, in an Aug. 27 ruling, U.S. District Judge Mark A. Kearney of the Eastern District of Pennsylvania rejected personal injury firm Simon & Simon’s counterclaims that RICO litigation from Uber and FedEx constituted sham litigation, among other claims.”
• “Still, the first sentences of Kearney’s ruling acknowledged the stakes for the defendants in these cases. ‘We appreciate experienced personal injury lawyers and doctors do not like reading their names in federal court complaints alleging their specific roles in alleged racketeering conduct,’ he wrote. ‘Especially when those allegations are made by companies Uber and FedEx whom they often sue in Philadelphia County seeking to recover for alleged personal injury losses subject to the state court judge’s and jury’s scrutiny. And then these allegations show up in press reports.'”
• “Simon & Simon is now claiming that Uber does not have sufficient financial stake in the underlying litigation, arguing its insurer Farmers Insurance Exchange has covered all settlement and defense costs in the litigation.”
• “‘This is a full stop,’ wrote the firm’s Blank Rome attorneys. ‘Discovery definitively shows that Uber has paid nothing and has no harm. Precedent is clear that a RICO lawsuit cannot be sustained where a secondary source, like Farmers, is paying the alleged damages. There is no caselaw in any jurisdiction that would support allowing Uber to continue with a RICO case in light of this admitted lack of standing. Only Farmers has standing to bring this RICO action.'”
• “The emerging litigation tactic is a response to so-called nuclear verdicts and high-volume litigation in certain jurisdictions, according to some experts.”
• “Regardless of how federal RICO claims against attorneys fare, they are unlikely to be the last attempt by corporations and their defense counsel to turn litigation against the lawyers who regularly sue them.”
• “In Georgia, for instance, the state Supreme Court is considering a case that could clarify when attorneys can pursue competing lawyers under the Georgia RICO Act. The case involves a plaintiffs attorney who alleges a competing firm engages in case running, or illegally obtaining accident victim data to solicit them before other lawyers can.”
• “Companies are already testing alternatives when RICO claims fail. After Ford’s racketeering case against Los Angeles Lemon Law attorneys was dismissed, the company’s Kasowitz counsel filed a complaint in June alleging plaintiffs’ firm Quill & Arrow lures customers through fraudulent advertising and convinces them not to participate in its repurchasing offer.”
• “As the financial stakes surrounding personal injury and mass tort litigation rise, plaintiffs attorneys could increasingly find themselves on the other side of the ‘v.’ RICO may be only one theory corporations and their defense counsel test in litigation aimed not merely at defeating individual claims, but at challenging the conduct of the lawyers bringing them.”

“Womble Bond Can’t Quit Dutch Client With TM Trial Looming” —

• “Womble Bond Dickinson can’t withdraw from a trademark feud that’s dragged on for more than five years between U.S. and Dutch software companies, a North Carolina federal judge ruled, saying the firm’s exit at this late stage ‘would be completely disruptive.'”
• “U.S. District Judge Martin Reidinger on Monday denied Womble Bond’s request to pull its representation of Dutch software company DMARC Advisor BV, in which the firm claimed withdrawal was necessary because of a ‘fundamental disagreement about the conduct of this litigation.’ According to Judge Reidinger, Womble Bond declined to provide the particulars of its rift with the client, even for in camera review.”
• “‘In short, counsel has left the court in the dark as to whether there is good cause for their withdrawal. Counsel’s assertion that the court should simply trust their word is simply unavailing,’ the judge wrote.”
• “‘It is counsel’s obligation to demonstrate cause. A bare assertion of a ‘fundamental disagreement’ might be sufficient if it were very early in the case and such withdrawal would work no prejudice to any party,’ he continued. ‘But here, 5½ years into a case and upon the doorstep of trial, such a bare assertion is simply insufficient.'”
• “Judge Reidinger also called out the paradox of the firm’s request given the events that preceded it. Previously, DMARC Advisor and one of its attorneys at Womble Bond were held in civil contempt for failing to correct misrepresentations allegedly made to a court in the Netherlands in a parallel lawsuit.”
• “As punishment, Judge Reidinger suspended the attorney, Pressly Millen, from practicing in the Western District of North Carolina until the case was resolved or he apologized to the foreign tribunal. The Fourth Circuit reversed his order on appeal this summer, finding it to be ‘overtly punitive.'”
• “In Monday’s opinion, Judge Reidinger said it is ‘ironic’ that DMARC Advisor’s counsel appealed the suspension ‘on the grounds that the defendant would be unduly prejudiced by being deprived of an attorney so knowledgeable of the case.'”
• “‘Now, upon the Court of Appeals reversing the court’s sanction and reinstating that attorney, that same attorney and his firm now move to withdraw,’ the judge wrote.”
• “The case dates to 2021, when North Carolina-based software company Dmarcian Inc. first sued DMARC Advisor over the ownership, licensing and use of certain source code.”

David Kluft asks: “Can I be adverse to a company that was spun-off from another corporate client?”

• “In 2019, Company B was spun off from Company A. Company A sold Company B some patents, and Company A’s CEO even transferred over to Company B. A big law firm represented Company A during the process, and consulted with the Company A CEO, as the appointed constituent of Company A, before he transferred to Company B.”
• “A few years later, Company B sued an alleged patent infringer in federal court in MA, apparently over some of the same technology. The same firm appeared in the case for the defendant. Company B moved to disqualify the firm, alleging that prior to the spin-off, the firm had access to documents that contained information reflecting the value of Company B’s patents and commercialization plans – in other words, they saw confidential information of Company A that sort of became Company B’s confidential information later. Company B argued that the firm therefore owed Company B a duty of confidentiality, and this precluded their being adverse to them in this case.”
• “The Court disagreed for two reasons. First, the assignment of a patent does not transfer an attorney client relationship. Second, ‘courts have held that ‘representation adverse to a former client’s affiliate is proper unless there is a high degree of operational commonality and financial dependence between the affiliated entities.’ Therefore, ‘the fact that [the firm] represented [Company A] when the business division that would later be transferred to [Company B] was still a part of [Company A] does not, without more, transform [the firm] into [Company B’s] counsel during or after’ the spin-off. “
• “[David’s Note: The Court relegated to a footnote another interesting argument, which was that the firm still represented Company A, and Company A still owned 20% of Company B, so therefore the firm would be adverse to its own current client’s property. However, Company B was apparently unable to articulate why the firm’s separate representation of a minority owner of Company B would interfere with the firm’s ability to effectively represent its client in a lawsuit against Company B, and therefore present a conflict under Rule 1.7(a)(2). The opinion did not state whether anyone bothered to seek informed consent from Company A, or at least tell Company A what was going on].”
• Decision: here.

“Paul Weiss calls bid to disqualify law firm in sugar antitrust case ‘gamesmanship’” —

• “Law firm Paul Weiss urged a federal judge in Minnesota on Wednesday to reject a bid from Mondelēz and other major food manufacturers to disqualify the ​firm from defending Domino Sugar and its owner ASR Group in a group of ‌lawsuits over alleged price-fixing in the sugar industry.”
• “In its court filing, Paul Weiss denied the food manufacturers’ claim that the firm has a conflict of interest based on its earlier effort to represent the companies ​as plaintiffs in the same litigation.”
• “The law firm said the lead Paul Weiss ​attorneys who pitched representing the food companies have since left the firm. Paul ⁠Weiss criticized the move to disqualify the firm as ‘strategic gamesmanship at its worst and ​entirely without merit.'”
• “ASR and Domino in a separate filing on Wednesday defended Paul Weiss and urged the ​court not to disqualify the firm. ‘ASR/Domino would lose the attorneys who know their business, the industry, and the issues better than anyone,’ they said.”
• “The ​manufacturers in seeking to oust Paul Weiss argue that they provided confidential strategy and pricing ​data to the firm in 2024 when they were preparing to bring the case and the law firm was vying to represent them. Paul Weiss countered that the only information sent to the firm was ‘historical purchasing data from just one of the plaintiffs.'”

Feels like a potential plot point for Curb Your Enthusiasm: “Judge May Reassess Recusal When Social Relationship With Attorney Changes: Judicial Ethics Opinion 26-30” —

• “Where a judge’s social relationship with an attorney has changed over time, the judge has discretion to determine his/her ethical obligations based on his/her assessment of their current relationship, using the categories of Opinion 11-125 as a guide.”
• “For approximately two years, the inquiring judge maintained a ‘close social relationship’ with an attorney within the meaning of Opinion 11-125. They never had a ‘falling out,’ but instead found themselves less close as ‘time and life pass[ed] by.’ In recent years, they have not socialized together and are now mere acquaintances who exchange ‘happy birthday text messages and similar pleasantries.’ The judge asks whether social relationships should ‘be assessed based upon current circumstances’ or if an earlier classification of friendship must ‘remain indefinitely’ or for a specified timeframe.”
• “We previously addressed a circumstance where the judge had once been close personal friends with an attorney who was also his/her law partner; they had known each other since childhood. However, ‘both the professional and social relationships between the judge and his/her former friend completely terminated more than five years ago and the two are no longer on speaking terms’ (Opinion 15-45). We advised that a judge ‘must assess his/her current relationship with a lawyer who was formerly a close personal friend in order to decide if disclosure or disqualification is required in cases where the former friend is personally involved’ (id. [emphasis added]; see also Opinion 18-04[A] [discussing obligations with respect to recent public sector colleague and ‘current social acquaintance’]).”
• “We do not see any reason to require a different result here. Judges should have full discretion to assess the current status and overall context of their interpersonal relationships with attorneys to determine their ethical obligations, rather than relying on a classification of the relationship at some earlier point in time. Given the present reality and dynamics of human relationships, which may gradually evolve, unexpectedly shift, fade away or reawaken, we continue to leave this assessment to each judge’s discretion.”
• “Accordingly, the inquiring judge need not maintain an earlier classification of a ‘close social relationship’ with an attorney either for a set period or indefinitely, but instead has full discretion to determine his/her ethical obligations based on his/her assessment of their current relationship, using the categories of Opinion 11-125 as a guide.”

New York City: “Judge Must Insulate Clerk Related to District Attorney From Criminal Matters: Judicial Ethics Opinion 26-23” —

• “A judge whose court clerk is a second-degree relative of the District Attorney must disclose the relationship and insulate the clerk from all criminal matters.”
• “The inquiring full-time judge handles ‘primarily criminal cases.’ The judge has been assigned a court clerk who is a second-degree relative of the county’s District Attorney. The clerk is a court system employee assigned to the judge’s courtroom, rather than a personal appointee or member of the judge’s chamber staff. The judge asks if disclosure and/or insulation is required in all criminal cases or only when the District Attorney personally appears, and whether remittal may be available.”
• “Where a judge’s staff member has a conflict,’it is ordinarily sufficient to insulate the staff member and disclose the insulation’ (Opinion 25-123 [citation omitted]). Thus, while the ethics rules do not require a judge to disqualify in a matter based on a court employee’s familial relationships, ‘we may require a judge to insulate the court employee from matters involving his/her own relatives’ by analogy to the provisions applicable to judges (id.).”
• “This applies to ‘pool’ court attorneys as well, who are not personally appointed or even assigned to work exclusively with one judge, but instead perform research and writing for all judges in the court (see Opinion 24-179).”
• “Where a pool court attorney is related by blood or marriage within the fourth degree to the county’s District Attorney, we said the court attorney ‘must be insulated from all criminal matters’ (id.). However, the insulation ‘may be remitted if the judge makes full disclosure of the basis for the court attorney’s insulation on the record, the parties and their counsel affirmatively consent to remit without participation by the court, and the judge is satisfied the court attorney will be fair and impartial’ (id.).”
• “We have recognized that the relationship between a judge and a court clerk is ‘decidedly less close’ than between a judge and his/her personal appointees (Opinion 23-80). Nonetheless, we have advised that a court clerk must be insulated from matters involving his/her close relatives (see Opinions 17-65 [court clerk whose third-degree relative is the village police chief must be insulated from all matters involving the police department]; 14-171 [court clerk whose second-degree relative is an assistant public defender must be insulated from his/her relative’s cases]).”
• “Accordingly, we conclude that a court clerk who is related within the second degree of relationship to the county’s District Attorney must be insulated from all criminal matters.”

“Emails, texts show Denver city attorney pushed for former law firm after insurer rejected it” —

• “A series of internal emails and text messages obtained by CBS Colorado appears to show Denver City Attorney Miko Brown pushing to get her former law firm hired for legal work involving Denver International Airport — even after the airport’s insurance company initially rejected the firm.”
• “The documents — obtained under Colorado’s Open Records Act — show Brown advocating for Wheeler Trigg O’Donnell, where she was a partner for 10 years, after AIG, the insurance company covering Denver International Airport, raised concerns about hiring the firm and initially said it would not do so.”
• “Four days after Brown pushed back against AIG’s decision, the insurance company reversed course and agreed to retain WTO as local counsel to help defend against lawsuits over a May 8 runway death at the airport.”
• “The revelations come as the Denver Board of Ethics investigates two complaints accusing Brown of trying to steer legal business to WTO.”
• “The Ethics Board voted unanimously, 3-0, to investigate both complaints. The vote does not mean the board has concluded Brown violated Denver’s Ethics Code. Rather, the board determined the complaints warranted a formal investigation.”
  Brown’s former law firm”
• “Brown was a partner at Wheeler Trigg O’Donnell from 2007 until 2017. She became Denver’s city attorney in 2025.”
• “The new documents concern legal work that arose after a May 8 incident at Denver International Airport in which Michael Mott, 41, crossed a perimeter fence and entered an active runway. He was struck and killed by a departing Frontier Airlines jet. His death was ruled a suicide.”
• “AIG, which provides insurance coverage for the airport, ultimately retained two law firms to represent Denver in connection with the matter: WTO and a national law firm. AIG, rather than Denver, is responsible for paying the firms’ legal bills.”
• “The newly obtained communications show that Brown was seeking to get WTO involved well before AIG had agreed to hire the firm.”
• “On May 15, a week after the runway incident, Brown texted Kevin Cain, a top lawyer at Denver’s airport. Brown wrote: ‘Trying to get as much info as possible for WTO (Wheeler Trigg O Donnell) ….’ Brown then referred Cain to WTO partner Jessica Scott, describing Scott as: ‘Really perfect.'”
• “Brown subsequently emailed several subordinates, writing: ‘Kevin spoke with AIG who has agreed to let us choose outside counsel. Assuming conflicts clear, Jessica Scott at WTO will handle.'”
• “The email is significant because AIG, rather than Brown or Denver, ultimately had authority to approve the outside law firms for this insurance matter.”
• “Brown later continued advocating for WTO. She wrote to Cain: ‘I should also mention that one of Jessica’s partners..has expertise in aviation-related matters. He’s also a licensed pilot.'”
• “But on June 3, Cain emailed Brown that AIG had raised what he described as an: ‘Apparent or perceived conflict of interest for WTO and they will not retain the firm.'”
• “Brown’s response was: ‘Thats ridiculous..'”
• “The next day, June 4, AIG formally notified Denver that it had selected a national law firm for the case. [Gordon Rees] AIG said WTO did not have the experience.”
• “Three days later, on June 8, the situation changed. Cain emailed Brown saying he had spoken with the city’s insurance broker, which in turn had spoken with AIG.”
• “The documents obtained by CBS Colorado do not explain exactly what happened between June 4 and June 8 that caused AIG to reverse its decision. Contacted by CBS Colorado, AIG has not provided an explanation for what changed its position.”
• “The communications do show the sequence: AIG initially rejected WTO, Brown continued pushing for the firm, and AIG subsequently agreed to retain WTO.”
• “The newly obtained documents are significant because the Denver Board of Ethics is now formally investigating an employee complaint alleging that Brown applied pressure to steer Denver International Airport legal work to WTO. The complaint was filed by an employee of the airport’s legal department who asked to remain anonymous, writing: ‘Miko will punish me.'”

“Korea raises data breach fines to 10% of revenue” —

• “Korea’s privacy regulator is sharply raising the cost of data breaches, aiming to push companies to treat data protection as a preventive investment rather than a routine cost of doing business.”
• “Starting Friday, companies found to have leaked the personal data of 10 million or more people through intent or gross negligence can be fined up to 10 percent of their total revenue as part of a broader overhaul under the revised Personal Information Protection Act that is set to take effect the same day. Even if a leak hasn’t been confirmed, companies must notify users within 72 hours if the risk of exposure is high. “
• “‘Personal data breaches have recently occurred repeatedly and grown in scale in fields closely tied to daily life, such as retail and telecommunications,’ Personal Information Protection Commission (PIPC) Secretary General Yang Cheong-sam told reporters Thursday. ‘We’ve improved the system to hold serious violations strictly accountable while also helping prevent breaches from happening in the first place.'”
• “Companies that invested in data protection beforehand will get credit under the new rules. Regulators will consider the scale and continuity of a company’s investment in data protection budgets, staffing and equipment, along with its broader protection system, including its chief privacy officer, to reduce a fine by up to 40 percent. A company that detects a breach early, reports and notifies users promptly, and prevents the damage from spreading can also receive up to a 40 percent reduction.”

Quick Update on the BRB Risk Compensation Survey:

At this point, we’ve had about 50 participants submit about 350 data points on staff roles and compensation levels. Given that were a bit over the halfway point in collection, we’re down from last year (which saw 100+ participants submit data on about 700 positions).

For those who are not participating — opting instead to purchase a report, or pursue access via a sponsor — I want to note that for the 2026/2027 edition prices for non-participating firms are definitely going up. (And moving forward I may take additional steps in terms of what is and is not included in the baseline report…)

This all works best if everyone contributes. (And I’ve been told the tragedy of the commons is wrong.)

The survey closes end of next week. So, let’s go team risk!

Questions? Need help? Reach out!

Otherwise, take the survey: here.

Thanks. And now back to your regular updates.

—–

David Kluft asks: “Can I still represent my divorce client after I marry her?” —

• “After a FL divorce, there were post-dissolution proceedings between the ex-Wife and ex-Husband regarding their children. While these proceedings were still ongoing, the ex-Wife married her divorce lawyer. The ex-Husband moved to disqualify the lawyer on the basis that he was now a material witness, although he didn’t actually explain what made the lawyer a material witness. The trial court described the case as a ‘train wreck’ and disqualified the lawyer ‘out of an abundance of caution’ because he ‘may’ have unique information and ‘might’ be called as a witness.”
• “On appeal, the District Court of Appeal invoked 3.7, which the trial court didn’t bother looking at. Rule 3.7 requires disqualification of a lawyer when he is a ‘necessary witness’ at trial. Here the ex-Husband had not sufficiently alleged that he was going to call the lawyer as a witness and why, and he offered no argument as to what information the lawyer had that the ex-Wife did not. Therefore, he was not a ‘necessary witness.’ In addition, the disqualification order was too broad because it disqualified the lawyer from representing the ex-Wife at all, and a Rule 3.7 order should be limited to trial.”
• Decision: here.

“Professional responsibility pitfalls from recent Illinois decisions” —

• “In Ordower v. Dalton, the underlying malpractice allegations stemmed from an attorney’s interpretation of a client’s voicemail as a withdrawal from a business transaction. The claimant argued that the attorney proceeded without adequately consulting the client regarding the client’s actual objectives. An ethics expert opined that such conduct violated Rule 1.4, which requires lawyers to reasonably consult with clients concerning the means by which their objectives are to be accomplished.”
• “The same decision also addressed allegations involving an attorney’s acquisition of an ownership interest in a transaction involving a client. The claimant asserted that the attorney’s personal financial interests conflicted with the client’s interests and that the transaction failed to satisfy the disclosure and informed consent requirements governing business transactions with clients.”
• “Rules 1.7 and 1.8 present recurring malpractice risks because they seek to protect clients from divided loyalties. Plaintiffs’ experts often focus heavily on whether disclosures were adequately documented and whether informed consent was obtained. Even transactions that appear beneficial to all participants can become fertile ground for malpractice allegations when the required safeguards are not strictly followed.”
• “For lawyers and law firms, compliance with these rules should never be treated as a technical exercise. Thorough written disclosures and documented client consent remain the best protection against later claims that personal interests compromised professional judgment.”
• “The allegations in Ordower v. Dalton also advanced claims that the attorney engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation under Rule 8.4. While those allegations remained disputed, the case illustrates how quickly a communication or conflict dispute can evolve into accusations of unethical conduct.”

“PE, Hedge Funds Are Barred From Steering Law Firms in California” —

• “Private equity, hedge funds and litigation funders can’t direct or influence law firms they back, according to legislation California law Governor Gavin Newsom (D) has signed into law.”
• “Newsom signed the state legislation (AB 2305) into law Sept. 20, and it will go into effect in January. It targets alternative business structures and management service organizations — two vehicles that allow non-lawyer investment in the legal space. The bill still allows the practice of non-recourse litigation finance as long as funders do not interfere in the practice of law.”
• “Philippa Balestrieri, a corporate M&A partner at Holland & Knight who works on investment structures in the legal industry, said that the law doesn’t restrict MSOs. Rather, it is a restatement of the same concepts that govern the models.”
• “‘I don’t see this as being a kind of watershed moment for the MSO market in California,’ she said. ‘I see this as, if anything, underlining for outside capital the need to hire competent counsel, hire people who know what they’re doing when they’re structuring your deals.'”
• “The bill Newsom signed was sponsored by Ash Kalra, a Democratic member of the State Assembly whose district encompasses most of San Jose. Newsom last year signed a Kalra measure that bans California attorneys and firms from sharing contingency fees with out-of-state alternative business structures.”

New York State Bar: “Ethics Opinion 1302: Provision of Integrated Legal, Tax, and Financial Planning Services” —

• “An attorney’s provision of integrated legal, tax, and financial planning services would, under Rule 5.7 of the New York Rules of Professional Conduct (the ‘Rules’), very likely result in all of such attorney’s services being subject to the Rules.”
• “In determining whether the Rules apply to the nonlegal services, the key factor is the degree of integration of the legal and nonlegal services (i.e., whether or not the legal and nonlegal services are ‘distinct’ or not ‘distinct’).”
• “Providing these integrated services would require consent, confirmed in writing, to a personal interest conflict but that consent would not permit the attorney to receive commissions or similar separate payments for providing financial planning advice. Whether an attorney should practice in a particular organizational form is beyond this Committee’s jurisdiction.”